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Criminal Miscellaneous No. 101/Q of 1982, heard on 17th January, 1984.

(a) Criminal Procedure Code '(V of 1898)--

---S. 561-A--Penal Code (XLV of 1860), S. 302/34/109--Quashing of proceedings--Even if names of accused placed in column No. 2 of Challan, Court of Sessions, held, was competent to issue process to them--Petition for quashment on ground, that Court of Sessions was not competent to issue process, dismissed.

Muhammad Ishaq v. The State 1979 P Cr.L,J Note 96 at 63 rel.

(b) Criminal Procedure Code (V of 1898)--

---S. 561-A--Penal Code (XLV of 1860), S. 302/34/109--Case exclusively triable by Court of Sessions--No detailed enquiry needed in taking congnizance by Magistrate while sending case to Court of Sessions-- Contention that Magistrate sent file io Court of Sessions in a mechanical manner without applying his mind repelled.

(c) Criminal Procedure Code (V of 1898)--

---S. 561-A--Penal Code (XLV of 1860), S. 302/34/109--Application for quashment--Accused in private complaint summoned in challan case- Additional Sessions Judge allowing application of complainant for withdrawal and dismissing complaint in order to avoid multiplicity of proceedings--Withdrawal of private complaint as such, held, would not constitute a ground for quashment of proceedings in challan case.

Mirza Masudur Rehman for Petitioners.

Malik Sarfraz for the State.

Major Waheedud Din Virk for the Complainant.

Date of hearing: 17th January, 1984.

Qutab Hussain complainant in case F.I.R. No. 361, dated 10^th September 1975, under section 302/34/109, P.P.C., Police Station Sheikhupura City, moved a petition praying for a direction to the trial Court to complete the hearing of the aforesaid ease "within 60 days as a special case". It came up for hearing before me on 9th January, 1984. The learned counsel submitted that the complainant was informed by some official of the Sessions Court, Sheikhupura, that the record of the case was lying in this Court and-further proceedings had been stayed. An inquiry made from the office revealed that the proceedings in the trial Court had been stayed by order, dated 28th April 1982 passed in Criminal Miscellaneous No. 101-Q of 1982 filed by Raja Khush Bakht-ur-Rehman and Muhammad Shafiq petitioners/ accused in the aforesaid murder case. I passed an order that both the petitions may be fixed before any Bench after obtaining orders from the learned Chief Justice. Both the petitions (Criminal Miscellaneous No. 8-M/1984 and Criminal Miscellaneous No. 101-Q/1982) have been placed before me by the order of the learned Chief Justice and shall be disposed of by this order.

2. The relevant facts are that Raja Khush Bakht-ur-Rehman and Muhammad Shafiq petitioners were named as accused along with three others in F.I.R. No. 361, dated 10-9-1975, under sections 302/34/109, P.P.C., P.S. Sheikhupura City. The allegations contained in the F.I.R. are that on 10th September, 1975 at 4 p.m. when Qutab Hussain complainant, his uncle Gharib Alam deceased, Muhammad Ashraf and Samanda were going to the clinic of Dr. Abbas, Nazir, Khushi and Shahbaz emerged from the side of taxi-stand. Shahbaz and Khushi raised Lalkara that Gharib Alam should not be allowed to go, upon which Nazir fired a pistol shot on the deceased, as a result of which he died on way to the hospital. Nazir was apprehended at the spot while Shahbaz and Khushi boarded a jeep standing nearby with Shafiq, petitioner No. 2, on the steering who sped it away. In the F.I.R. it was further alleged that Nazir, Khushi and Shahbaz committed the murder of Gharib Alam deceased in pursuance of a conspiracy with Shafiq and Raja Khush Bakht-ur-Rehman petitioners. During the investigation these two petitioners and Khushi Muhammad were found innocent and shown in column No. 2 of the challan.

3. The complainant filed a private complaint against the petitioners and others but the same was subsequently withdrawn. The challan case was entrusted to the learned Additional Sessions Judge who summoned the petitioners and co-accused Khushi Muhammad vide his order, dated 3rd October, 1978.

4. The main contention of the learned counsel for the petitioners in Criminal Miscellaneous No. 101-Q/1982 is that the learned Additional Sessions Judge was not competent to issue process to the -petitioners who were shown in column No. 2 of the challan. This question was considered by this Court in Muhammad Ishaq v. The State 1979 P Cr. L J Note 96 at p. 63. It was held that under section 193(1), Cr.P.C. the Court of Session is "seized of the entire case and can summon any A person as an accused who might appear to be concerned with the commission of offence irrespective of the fact that he was declared innocent by the police and shown in column No. 2 of the challan". This view was upheld by a Division Bench of this Court in Muhammad Haneef and another v. The State 1979 P Cr. L J 1078. The contention, therefore, has no force.

5. The learned counsel next contended that the learned Magistrate had sent the file to the Court of Session in a mechanical manner without applying his mind. This contention, too, has no force. In a case exclusively triable by the Court of Session taking of cognizance B by the Magistrate is merely for the purpose of sending the 'case to the Court of Session and no detailed inquiry is needed.. There is no infirmity in the order sending the case to the Sessions Court.

6. Lastly, the learned counsel submitted that the order of the learned Additional Sessions Judge dismissing the private complaint as withdrawn, was unwarranted. The record shows that on 7th April, 1982 Qutab Hussain complainant made a statement before the Court, that since the respondents in the complaint had been summoned in the challan-case, therefore, the complaint had become infructuous which may be dismissed. The learned Additional Sessions Judge observed that by allowing the request he would "be promoting the principle of law which aims at avoiding multiplicity of proceedings". He, therefore, dismissed the complaint. Be that as it may, the withdrawal of the private complaint in the circumstances mentioned above, does not constitute any ground for quashment of the proceedings in the challan-case. There is, thus, no substance in Criminal Miscellaneous) No. 101-Q of 1982, and the same is dismissed.

Since the murder case is pending for the last more than eight years, the learned Additional Sessions Judge, Sheikhupura, is directed to dispose it of within three months. Criminal Miscellaneous No. 8 of 1984 stands disposed of accordingly.

M.Y.H

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